Gujarat High Court
Nanhelal @ Nandlal Fulraj Yadav vs State Of ... on 29 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/436/2009 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No. 436 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ NANHELAL @ NANDLAL FULRAJ YADAV....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1 MRS NISHA M PARIKH, ADVOCATE for the Appellant(s) No. 1 MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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R/CR.A/436/2009 CAV JUDGEMENT
Date : 29/04/2014
CAV JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present appeal is at the instance of a convict- accused of the offences under Section 302 of the Indian Penal Code and is directed against the order of conviction and sentence passed by the Additional Principal Judge, City Sessions Court No.2, Ahmedabad, dated 27th February 2009 in Sessions Case No.94 of 2008.
By the aforesaid order, the learned Additional Principal Judge convicted the accused-appellant of the offence of murder punishable under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment. The learned Additional Principal Judge also convicted the accused-appellant of the offence under Section 135 of the Bombay Police Act. However, no separate sentence was imposed by the trial Court for the offence under Section 135 of the Bombay Police Act.
I. Case of the Prosecution :
The accused and the deceased viz. Lakhpatiben resided Page 2 of 31 R/CR.A/436/2009 CAV JUDGEMENT in the same locality near the place known as 'Bachubhai-no- Kuva'. A day prior to the incident, a quarrel had ensued between the accused and the deceased on account of pelting of stones on the house of the deceased.
It is the case of the prosecution that the deceased had alleged and questioned the accused as to why he had indulged in pelting of stones on the house of the deceased. Even otherwise, the accused and the family of the deceased was not getting along well and frequent quarrels used to ensue between them. It is also the case of the prosecution that the deceased and her husband PW2 Santram Chauhan were in the business of selling and delivering milk, and for such purpose, they had reared cows at their place of residence.
On 24th January 2007, the deceased and her husband had gone to deliver milk to their respective customers in the early hours of the morning and both were returning home after delivering milk.
It is the case of the prosecution that the deceased, while returning home, came face to face with the accused near a shop running in the name and style of M/s. P.R.Pal Provision Page 3 of 31 R/CR.A/436/2009 CAV JUDGEMENT Stores. Incidentally, the husband who was also returning home after delivering milk happened to reach near the provision stores.
It is the case of the prosecution that the husband of the deceased heard the accused from a distance telling the deceased as to why the deceased had quarreled with the accused on the previous day, and saying so, inflicted injuries on the body of the deceased with a sickle, leaving the deceased in a pool of blood. By the time the husband of the deceased could reach the spot of occurrence and do something, the accused fled away.
It is the case of the prosecution that someone residing in the locality where the incident had occurred informed the police regarding the same.
The husband of the deceased lodged a First Information Report Exh.20, stating that the deceased was his wife. He has stated that in the wedlock, four children were born. He was working as a Gardener at the GIDC, Vatva. He has stated that his wife, the deceased, had two cows and was carrying on the business of selling milk at the house of fixed customers. The Page 4 of 31 R/CR.A/436/2009 CAV JUDGEMENT accused resides in the rear part of the house of the first informant. He has stated that on 23rd January 2007, stones were pelted on the rear door of their house, for which his wife had reprimanded the accused. He has stated that there was some altercation between the accused and his wife. In the past also such quarrels had ensued but no complaints were lodged against the accused. He has stated that on 24th January 2007 at around 7:30 in the morning, he had gone walking to deliver milk at the house of a customer residing at Shriramnagar, and at the same time, his wife, the deceased, had also left for delivering milk at the house of one Shravansingh residing at Hanumannagar. The accused was returning home after delivering milk at around 8 O'clock in the morning and at that time, he saw that the accused was quarreling with his wife near P.R.Pal Provision Stores on the road. He has stated that he could hear the accused asking the deceased as to why she was quarreling with him the other day, and saying so, hit blows on the body of the deceased with a sickle. No sooner had the deceased sustained injuries, than she fell down, and before he could do something, the accused ran away from the spot of occurrence. He has further stated that his wife succumbed to the injuries at the spot. He, thereafter, immediately informed the Police Control Room regarding the Page 5 of 31 R/CR.A/436/2009 CAV JUDGEMENT incident. He has also stated that by that time one Premrani Ratilal Verma, residing just opposite the spot of occurrence, also arrived and other people residing nearby place of occurrence also gathered.
On complaint being lodged, the investigation had commenced. The inquest panchnama of the dead body of the deceased Exh.10 was drawn in presence of the panch- witnesses. The scene of the offence panchnama Exh.23 was drawn in presence of the panch-witnesses. The dead body of the deceased was sent for postmortem examination and the postmortem report Exh.8 noted the cause of death to be shock and hemorrhage due to injury over the head and neck. The clothes worn by the deceased at the time of the incident were collected by drawing panchnama Exh.25. The accused was arrested and the arrest panchnama of the person of the accused Exh. 24 was drawn in presence of the panch- witnesses. The discovery panchnama Exh.26 of the weapon of offence was drawn in presence of the panch-witnesses under Section 27 of the Evidence Act. The statements of various witnesses were recorded. Finally, charge-sheet was filed in the Court of Metropolitan Magistrate, Ahmedabad.
As the case was exclusively triable by the Sessions
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R/CR.A/436/2009 CAV JUDGEMENT
Court, the Metropolitan Court No.19, Ahmedabad, committed the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure.
The Sessions Court framed charge Exh.3 against the accused. The accused pleaded not guilty and claimed to be tried.
The prosecution examined the following witnesses in support of its case:-
No. Name Exh.1. PW-1 Dr.Sanatan K.Vaishnav 7
(Doctor who performed the postmortem) 2. PW-2 Santram B.Chauhan 12 (Complainant, husband of the deceased) 3. PW-3 Maqsoodahmed R.Nagori 14 (Panch-witness) 4. PW-4 Pravin R.Bharvad 15 (Panch-witness) 5. PW-5 Fazalmohammed S.Saiyed 16 (Panch-witness) 6. PW-6 Mohmedakbar G.Saiyed 17 (Panch-witness) 7. PW-7 Sanjay Rajeshwar Shukla 18 (Panch-witness) 8. PW-8 Mukundsinh Balvantsinh Raj 19 (Investigating Officer) The prosecution also produced the following pieces of Page 7 of 31 R/CR.A/436/2009 CAV JUDGEMENT documentary evidence.
1. Exh.8 Postmortem note.
2. Exh.9 Certificate of the Civil Hospital certifying the death of the deceased.
3. Exh.10 Inquest panchnama.
4. Exh.20 Complaint.
5. Exh.21 Report of the P.I. Raj for registering an offences under Section 157 of the CR.P.C.
6. Exh.22 Report written by the P.I.Raj to the FSL for securing the presence of the FSL officers at the scene of the incident.
7. Exh.23 Panchnama with regard to the scene of the incident.
8. Exh.24 Panchnama with regard to the arrest of the accused as also the seizure of his clothes.
9. Exh.25 Panchnama with regard to the production and seizure of the clothes of the deceased
10. Exh.26 Panchnama with regard to the recovery and discovery of the muddamal weapon.
11. Exh.27 Forwarding letter written by the Vatva Police Station to the FSL.
12. Exh.28 Receipt from the FSL.
13. Exh.29 Forwarding letter of the FSL.
14. Exh.30 FSL report.
15. Exh.31 Serological report of the FSL.
16. Exh.32 Notification issued by the Commissioner of Police under the provisions of the Bombay Police Act.
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17. Exh.33,35 & 36 Panch slips with regard to the respective panchnamas drawn during the course of the investigation.
18. Exh.39 Wardhi signifying a message received by the operator of the Vatva Police Station.
The accused denied the allegations levelled against him by the evidence adduced by the prosecution under Section 313 of the Code of Criminal Procedure and asserted that he was innocent.
The learned Sessions Judge, on being found the appellant guilty, convicted him and sentenced him as stated above.
Being dissatisfied, the convict-appellant has come up with the present appeal .
II. Submissions on behalf of the accused-
appellant.
Ms.Nisha Parikh, the learned advocate appearing for the accused, has vehemently submitted that the trial Court committed a serious error in finding the accused guilty of the Page 9 of 31 R/CR.A/436/2009 CAV JUDGEMENT offence of murder by placing implicit reliance on the evidence of the solitary eye-witnesses i.e. PW2 Santram, the husband of the deceased.
According to Ms.Parikh, the PW2, husband of the deceased, is not an eye-witness to the incident as is apparent from the wardhi Exh.39. Ms.Parikh submits that the FIR was lodged by the PW2 at 10:35 a.m. whereas, the wardhi Exh.39 forwarded at 9 O'clock in the morning only stated that the PW2 Santram Chauhan informs that a dead body is lying near the well of Bachubhai situated at four roads near Gayatrinagar, Prabhudayal Provision Stores. Ms.Parikh submits that if the PW2 had witnessed the incident, then the information given by him as reflected from Exh.39 would not have been of such a nature.
Ms.Parikh submits that the PW2, husband of the deceased, cannot be termed as a wholly reliable witness. As he cannot be termed as wholly reliable witness, the trial Court ought to have insisted for corroboration in material particulars.
In such circumstances referred to above, Ms.Parikh prays that there being merit in the appeal, the same may be Page 10 of 31 R/CR.A/436/2009 CAV JUDGEMENT allowed.
III. Submissions on behalf of the State.
Ms.Chetana M.Shah, the learned APP appearing for the State, has vehemently opposed the appeal and submitted that the trial Court committed no error in finding the accused guilty of the offence of murder.
Ms.Shah submits that there is nothing inherently improbable in the evidence of the PW2 so as to reject his evidence in toto being a solitary eye-witness to the incident.
In such circumstances referred to above, Ms.Shah prays that there being no merit in the appeal, the same may be dismissed.
IV. Oral Evidence :
The PW1 Dr.Sanatan Krishnakant Vaishnav, in his
evidence Exh.7, has deposed that on 24 th January 2007 he was on duty as a Medical Officer at the Ahmedabad Civil Hospital, and at that time, a dead body of a lady viz. Lakhpatiben, wife Page 11 of 31 R/CR.A/436/2009 CAV JUDGEMENT of Santram, was brought for postmortem by the Police Constable, Buckle No.4162, with a yadi issued by the Police Inspector of Vatva Police Station.
The PW1 has deposed that the postmortem examination revealed the following external injuries on the dead body :
"
(1) 9cm x 2 cm IW present on left frontal forehead region, starting from 1 cm superior to lateral part of left eyebrow and goes upward posteriorly it is 5cm left to midline. Gaping # seen.
(2) 5cm x 0.5cm, bone visible, IW present on right lateral parietal region, 9cm superior to ear and 6cm lateral to midline, directed anterior to posterior. (3) 11cm x 5 cm, transverse IW present on mid and left part of the back of the neck, starting from 1 cm posterior to lower end of left ear, it is 7cm deep, cutting spine and adjoining soft tissues and muscles.
(4) 18cm x 6 cm IW having two components : (A) 11cm x 3cm, starting from 3cm anterior to left tragus, goes upwards upto 6cm posterior to left ear, cutting zygoma and temporal bones full thickness ear, brain matter visible (B) 11cm x 6cm starting from 3cm posterior to left ear and posterior end of (A), goes backwards upto occipito parietal with cut # of temporal and parietal bones. Injury (A) & (B) are merging and seems to be one Page 12 of 31 R/CR.A/436/2009 CAV JUDGEMENT wound.
(5) 5cm long, transverse slicing, IW present on middle finger right sided starting from tip to proximal inter phalangeal joint."
He has further deposed that the postmortem examination revealed the following internal injuries :
"Fracture area 18cm x 14cm involving left frontal, parietal, temporal and occipital bones, from which parietal, frontal and temporal pieces removable manually.
Dura cut on fronto temporo parietal area. Brain contused and lacerated on fronto temporo parietal area.
Intracranial hemorrhage present."
The cause of death assigned in the postmortem report Exh.8 is shock and hemorrhage due to injuries over the head and neck.
He has deposed that the injuries mentioned in column nos.17, 19 and 22 were sufficient in the ordinary course of Page 13 of 31 R/CR.A/436/2009 CAV JUDGEMENT nature to cause death.
On being shown the muddamal article no.13 i.e. the weapon of offence sickle, he deposed that the injury sustained by the deceased can be caused by such a weapon.
In his cross-examination, he has deposed that there are different procedures to be adopted for determining the exact time of death. He has deposed that in his postmortem report he had not stated the probable time of death. He has also deposed that it would take around three to four hours for the rigor mortis to develop and within twelve hours on the entire body. He has also deposed that at the time of performing the postmortem, rigor mortis had already developed.
The PW2 Santram Baijnath Chauhan is the husband of the deceased. In his evidence Exh.12, he has deposed that he has been working at the Vatva GIDC as a Gardener. He has deposed that the deceased was his wife. On 23 rd January 2007 in the night hours between 10 and 11, while at home, someone pelted stones on his house. When he opened the door, he saw the accused standing outside his house. The PW2 inquired with the accused as to why he was pelting the stones on his house. Page 14 of 31
R/CR.A/436/2009 CAV JUDGEMENT In reply, the accused said that, "he would do so and you may do whatever you would like to do". He has deposed that at that time his wife, the deceased, was also present. The deceased also rebuked the accused for his act of pelting stone on their house. He has deposed that although an altercation had taken place on 23rd January 2007 between the accused and his family, yet thought fit not to make an issue out of it. He has deposed that on 24th January 2007, after he woke up, he milked the cow and then proceeded to deliver milk to one of his customer at Shriramnagar. At the same time, his wife, the deceased, also went to deliver milk at the house of one Shravansingh, residing at Hanumannagar. According to him, he and his wife both left at around 7:30 to 8:00 in the morning. He has deposed that while returning home after delivering milk, he saw that his wife was being confronted by the accused near the provision stores of one Prabhudayal. He has deposed that the accused had a sickle in his hand and was talking very loudly with his wife. He has deposed that he heard the accused telling his wife why she was quarreling with him the other day. Before the PW2 could reach near his wife, the accused inflicted injuries with the sickle on the head of his wife and ran away. He has deposed that by the time he reached near his wife, he found her lying in Page 15 of 31 R/CR.A/436/2009 CAV JUDGEMENT a pool of blood and panting for life. He has deposed that his wife succumbed to the injuries at the spot. He has also deposed that a lady residing in the neighbourhood viz. Premrani Ratilal Verma, and the owner of the provision stores one Shri Prabhudayal also arrived at the spot of occurrence. He has deposed that as he was shocked on witnessing the incident, he informed the Police Control Room by dialing '100' regarding the incident. He has deposed that after some time the police arrived and his complaint was taken down in writing.
In his cross-examination, he has deposed that he was working as a Gardener at GIDC, Vatva and at fifteen other places at Vatva. He has deposed that his wife used to carry milk in a one-litre container every day. He has also deposed that she used to go to deliver milk at one particular house only and used to get back the container after delivering milk. He has deposed that they were not issuing any coupons to the customers for the sale of milk. He denied the suggestion given to him that on the date of the incident his wife, the deceased, had not gone to deliver milk. He also denied the suggestion given to him that on the date of the incident he had not seen the accused as asserted by him in his examination-in-chief. He has further deposed that he had not stated in his complaint Page 16 of 31 R/CR.A/436/2009 CAV JUDGEMENT that while his wife, the deceased, reached near the provision stores of one Prabhudayal then at that time the accused was standing with a sickle in his hand at that place. He has also deposed that it has not been stated by him in the complaint that he could see from a distance that the accused was quarreling with his wife in a loud voice. He has deposed that he had not stated in his complaint that at the time of the incident the owner of the provision stores Shri Prabhudayal Pal and Kiranben were present. He has also deposed that he had not stated in the complaint that when the altercation between the accused and his wife was going on, he was at a distance of around 50 steps. He has deposed that he had no idea how long the altercation had lasted between the accused and the deceased. By the time the PW2 could reach near his wife, she had already fallen down. He has deposed that when he reached near his wife, he saw her dead body. He denied the suggestion given to him that he was busy doing his work of gardening and at that time he received the information regarding the killing of his wife and, thereafter, he reached at the spot of occurrence. He also denied the suggestion given to him that he reached the spot of occurrence at 9 O'clock in the morning. He denied the suggestion that the wardhi which was dictated by him was at 9 O'clock in the morning. He denied the Page 17 of 31 R/CR.A/436/2009 CAV JUDGEMENT suggestion that as he had not witnessed the incident, he was not able to give any details regarding the same in the wardhi. He also denied the suggestion that due to such reason he was not able to disclose the name of the accused in the wardhi. He has admitted in his cross-examination that the business of selling milk was being carried on only by his wife and not by him. He denied the suggestion that as the accused was at inimical terms due to frequent quarrels, the name of the accused was falsely disclosed as the assailant.
The PW3 Maqsoodahmed Rashidahmed Nagori has been examined as one of the panch-witnesses. The PW3, in his evidence Exh.14, failed to support the case of the prosecution and was accordingly declared as a hostile witness. The evidence of the PW3 does not help the prosecution in any manner.
The PW4 Pravinbhai Ranchhodbhai Bharvad has also been examined as one of the panch-witnesses. In his evidence Exh.15, he failed to support the case of the prosecution and was declared as a hostile witness. His evidence is also not helpful in any manner to the prosecution.
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R/CR.A/436/2009 CAV JUDGEMENT The PW5 Fazalmohammed Shabbirali Saiyed has also been examined as one of the panch-witnesses. However, this witness, in his evidence Exh.16, failed to support the case of the prosecution and was declared as a hostile witness.
The PW6 Mohammedakbar Gulammurtuza Saiyed has also been examined as a panch-witness, but he also failed to support the case of the prosecution and was declared as a hostile witness.
The PW7 Sanjay Rajeshwar Shukla has been examined as one of the panch-witnesses. In his evidence Exh.18, he has deposed that on 24th January 2007 he was passing through the place of occurrence and was stopped by the police. He was told by the police that a lady had been murdered and in that connection some proceedings were to be undertaken. He has deposed that the police officials were doing some work of measurement at the place of occurrence. He has deposed that the husband of the deceased works as a Gardener. He has deposed that as the PW2 kned him, he was asked by the PW2 to stop and it was the PW2 who had shown him the place of occurrence.
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R/CR.A/436/2009 CAV JUDGEMENT In his cross-examination, he has deposed that at the time of the incident he was working at the Vatva GIDC. He has also deposed that on both the sides of the road of the spot of occurrence, there are residential houses and shops.
The PW8 Mukundsinh Balvantsinh Raj is the Investigating Officer. The PW8, in his evidence Exh.19, has deposed regarding the various stages of the investigation. He has deposed regarding the arrest of the accused from Dediapada. He has deposed that after the arrest of the accused, the accused expressed his willingness to point out the place where he had concealed the sickle i.e. the weapon of offence. Accordingly, a discovery panchnama was drawn in presence of the two panch-witnesses and the sickle was discovered from the place pointed out by the accused. He has deposed that although the PW2 has stated that on the date of the incident he had gone to Shriramnagar to deliver milk, but he had not recorded the statement of any such persons residing at Shriramnagar.
The Investigating Officer has also deposed that he had not recorded the statement of the customer residing at the Hanumannagar at whose place the deceased had gone to Page 20 of 31 R/CR.A/436/2009 CAV JUDGEMENT deliver milk in the morning. He has deposed that during the course of investigation, he had received a wardhi which he had kept along with the papers of investigation. He was shown the copy of the wardhi which was admitted in the evidence as Exh.39. He has further deposed that in the course of investigation the container of milk was not recovered from the place of occurrence.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is, whether the trial Court committed any error in finding the accused guilty of the offence of murder.
It appears from the materials on record that the entire case of the prosecution hinges on the evidence of the solitary eye-witness i.e. the PW2, husband of the deceased.
Before we proceed to consider the oral evidence of the PW2, it will be profitable for us to look into the position of law so far as the appreciation of evidence of the solitary eye- witness is concerned.
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R/CR.A/436/2009 CAV JUDGEMENT The Supreme Court in Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 has explained the principles of appreciation of evidence of a solitary eye-witness. The observations made by the Supreme Court in this regard are worth noting :-
"On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outways the testimony o a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in case where the nature o the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this a Page 22 of 31 R/CR.A/436/2009 CAV JUDGEMENT much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that no particular number of witnesses shall, in any case, be required for the proof of any fact. The legislature determined as long ago as 1872 presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses."
The Supreme Court further observed as under :
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilty depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted o rejected. If such a testimony is found by the court to be entirely reliable, Page 23 of 31 R/CR.A/436/2009 CAV JUDGEMENT there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of the accused person may be established on the testimony of the single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories. Namely;
(1) wholly reliable;
(2) wholly unreliable;
(3) neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness. If it is found to be above approach or suspicion of interestedness, incompetence of subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of Page 24 of 31 R/CR.A/436/2009 CAV JUDGEMENT any fact, they will be indirectly encouraging subordination of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to the suspicion. It becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to be depend and act upon the testimony of a single witness in support of the prosecution."
The aforenoted decision has since been followed in Ramratan and others v. The State of Rajasthan, AIR 1962 SC 424; Guli Chand and others v. State of Rajastan, AIR 1974 SC 276; Badri v. State of Rajasthan, AIR 1976 SC 560; Vanula Bhushan @ Venuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236; and in Jagdish Prasad v. State of M.P., AIR 1994 SC 1251.
Thus, from the aforenoted decision of the Supreme Court, it becomes clear that conviction can be recorded on the basis of the statement of a single eye-witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is Page 25 of 31 R/CR.A/436/2009 CAV JUDGEMENT convinced that he is a truthful witness. The court would not then insist on corroboration by any other eye-witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. It is equally well-settled that the courts insist on the quality, and not on the quantity of evidence.
On a close scrutiny of the evidence of the PW2, it appears to us that he is not the eye-witness to the incident, but in the absence of any other evidence to connect the accused with the crime, the PW2 has been falsely projected as the eye-witness to the murder of his wife. We do not find any ring of truth in the evidence of the PW2. We are quite wary to accept the version of the PW2 that on the date of the incident early in the morning at around 7:30 he had gone to deliver milk at Shriramnagar, and at the same time, his wife, the deceased, had also gone to the house of one Shravansingh residing at Hanumannagar to deliver milk.
It appears to us that with a view to establish that the accused is an eye-witness to the incident, the investigating agency had no other option but to introduce a fabricated story that the PW2 had gone to Shriramnagar to deliver milk at the house of the customers. In the first place, this very version of Page 26 of 31 R/CR.A/436/2009 CAV JUDGEMENT the PW2 appears to be doubtful because the PW2 on his own admission in his evidence has stated that it was only his wife who was carrying on the business of selling milk while he was engaged in the work of gardening at GIDC, Vatva, and at few other places at Vatva. The investigating agency has not recorded the statement of the customer residing at Shriramnagar as well as the customer residing at Hanumannagar, viz. Shravansingh. By recording the statements, it could have been easily proved that the accused had gone to Shriramnagar to deliver milk, whereas the deceased had gone to Hanumannagar at the house of Shranvansingh to deliver milk.
Apart from the above, the manner in which the PW2 has narrated the entire incident of assault leaves us with no manner of doubt that he is not the eye-witness. If the PW2 had actually witnessed the incident, then the contents of the wardhi Exh.39 would have been something different. The PW2 claims that the incident occurred early in the morning, whereas the wardhi Exh.39 shows the time 9 O'clock in the morning. The wardhi Exh.39 is suggestive of the fact that at 9 O'clock in the morning the PW2 had informed the police by dialing '100', stating that a dead body was lying near the well Page 27 of 31 R/CR.A/436/2009 CAV JUDGEMENT of Bachubhai situated at four roads, Gayatrinagar near the provision stores of Shri Prabhudayal. The FIR was lodged at 10:35 in the morning. There is no explanation at the end of the PW2 as to why he had not stated anything regarding the incident in the wardhi Exh.39, which he had given at 9 O'clock in the morning. It is very doubtful that the deceased had actually gone to the house of a customer, viz. Shravansingh at Hanumannagar to deliver milk, and while returning home, the incident had occurred. If the deceased had really gone to the house of Shravansingh residing at Hanumannagar to deliver milk, then atleast the container would have been recovered from the place of occurrence. The PW8, Investigating Officer, has deposed that no such container was recovered from the place of occurrence.
Most importantly, number of contradictions in the form of material omissions have been recorded in the evidence of the PW2, going to the root of the matter. Such omissions are relevant under Section 11 of the Evidence Act. The PW2 has deposed that when he reached near the deceased, the deceased had fallen down. He has further deposed that he had not made any attempt to catch hold of the assailant. He has, thereafter, deposed that the dead body of his wife was lying at Page 28 of 31 R/CR.A/436/2009 CAV JUDGEMENT the spot of occurrence. This part of the evidence of the PW2 in his cross-examination would suggest that it is only at a later stage that he learnt about the incident, and no sooner he must have learnt about the incident, he reached the place of occurrence. We find it extremely difficult to believe the version of the PW2 that the dead body remained at the place of occurrence till he lodged the complaint at 10:35 in the morning. What would be the natural conduct of the husband if he finds his wife in a pool of blood having received injuries over her head. Any person would first make efforts to rush the injured to the hospital, but here is a case where the husband has an explanation to offer that the wife had already succumbed to the injuries. This conduct of the PW2 appears to be very unnatural.
All these aspects which we have discussed have not been appreciated by the trial Court while convicting the accused. Even the medical evidence on record, to a certain extent, falsifies the oral version of the PW2. According to the PW2, the incident had occurred in the morning at around 8 O'clock. First, it is extremely difficult for us to believe that the accused would select a place to assault the deceased surrounded by residential houses and shops, and that too, at 8 O'clock in the Page 29 of 31 R/CR.A/436/2009 CAV JUDGEMENT morning. The prosecution has not been able to examine a single independent witness residing nearby the place of occurrence. Secondly, if the incident, according to the PW2, had occurred at 8 O'clock in the morning and the postmortem had commenced at 3 O'clock in the afternoon, then in such circumstances, rigor mortis all over the body could not have been developed. For rigor mortis to develop fully, it takes around twelve hours. The fact that rigor mortis was present all over the body would suggest that the incident had not occurred at the time as deposed by the PW2, but it must have taken place very early in the morning.
In the overall view of the matter, we have reached to the conclusion that the trial Court committed a serious error in finding the accused guilty of the offence of murder by placing implicit reliance on the evidence of the solitary eye-witness, PW2.
Once we eschew from considering the evidence of the PW2, then there is no other evidence worth the name to connect the accused with the crime. The discovery panchnama of the weapon of offence also pales into insignificance because the prosecution witnesses have not supported the case of the Page 30 of 31 R/CR.A/436/2009 CAV JUDGEMENT prosecution and have been declared as hostile witnesses. Although the PW8, Investigating Officer, has tried to prove the discovery of the weapon of offence, yet the same cannot be taken into consideration as the PW8 has not proved the contents of the discovery panchnama.
For the foregoing reasons, this appeal succeeds and is hereby allowed. The order of conviction and sentence passed by the trial Court are hereby set-aside. The accused-appellant is ordered to be released forthwith, if not required in any other case.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 31 of 31